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Letter: "Practitioners or salesmen?": a comment
7 Aug 17
Examination of title must not be allowed to become a lost art
The excellent article “Practitioners or Salesmen”, by Mr Ashley Swanson (Journal, July 2017, 34) could not be more timely. Mr Swanson tells us that his drawing attention, on behalf of purchaser clients, to title defects has not proved conducive to his popularity amongst affected sellers’ solicitors.
I myself have always found a desire on the part of sellers’ solicitors to ensure that they were not passing the parcel down the line in the hope of the headache being someone else’s in the future. Actually, the one and only time that I found a seller’s solicitor up in arms about a conveyancing transaction was, when acting for a purchaser, I refused to accept a letter of obligation from a very senior solicitor employed by the largest Scottish local authority owing to the fact that, at the time in question, he had not bothered to take out a current annual practising certificate.
To the extent that the problem Mr Swanson describes has come to exist, this may well be as a consequence of today’s frenetic efforts to expedite turnover. However, there are undoubtedly other reasons why the conscientious examination of title is discouraged. Gone are the days when a law apprentice’s first few months in a law office were preoccupied with examining and making notes on title, and having their importance driven into the apprentice. Gone too, but understandably, have the days when a purchaser’s solicitor would deliver by hand the settlement cheque (yes, cheque) to the seller’s solicitor in exchange for the keys.
Furthermore, nowadays the postgraduate legal diploma places relatively little emphasis on examination of title. Mr Swanson says that “Examination of title… is simply reading a title to see what it actually covers and then tying that to what exists on site.” However, with all too rare exceptions, gone also are the days when a purchaser’s solicitor in person would visit and view the subjects of sale in order to ensure congruence between title and the actual subjects of sale. Of course, examination of title entails more than satisfying oneself as to such congruence. The writs must be examined to ensure, inter alia, that where required they have been stamped appropriately; that all the requisite clauses are present; that all title conditions have been effectively transmitted; that adjunct deeds are in order; and that all writs are properly executed. Examining title punctiliously must not be allowed to become a lost art!
George Lawrence Allen, Edinburgh